The need to rethink BCI's Rules on the one-year LL.M

An earlier piece on this forum discussed the need to question the logic of the Bar Council of India (BCI) in exercising its regulatory power over legal education and the overstepping of its jurisdiction while partaking in regulating the LL.M degree programme.

In this piece, the author shall argue that:

1. Chapter IV of the BCI Legal Education (Post Graduate, Doctoral, Executive, Vocational, Clinical and other Continuing Education) Rules, 2020, which deals with ‘Rule for Equivalence Miscellany’, suffers ambiguity and Wednesbury unreasonableness while carving out an exception to the rule.

2. The same equivalence as under the Rule 20(3) must be accorded to one-year LL.M from premier law universities in India.

Rule 6 of the 2020 Rules abolishes the one-year Master's Degree Program in Law offered by Indian universities.

Rule 20, which deals with the ‘Equivalence of Post Graduate Degree obtained from a Foreign University’, provides some exceptions to the two-year LL.M degree.

Sub-rule 1 of Rule 20 states,

“In order to qualify for test of equivalence of LL.M degree obtained from any foreign University, the Masters’ Degree in Law course must have been taken only after obtaining the LL.B. degree from any foreign or Indian University which is equivalent to the recognized LL.B. degree in India.”

This provision is ambiguous because it does not per se tell the reader whether a one-year LL.M degree from any foreign university will be recognised under the aforesaid rule. This is relevant because the top five law schools or the ‘highly accredited foreign universities’ in both the United Kingdom and the United States of America offer only 1-year LL.M(s).

The solution to this question can be partly obtained from sub-rule 3 of Rule 20, which expressly states that “the one-year LL.M obtained from any foreign university is not equivalent to Indian LL.M. degree.”

However, if a person obtains a one-year LL.M after competing ‘equivalent LL.B. degree’ from a ‘highly accredited foreign university’, it may entitle the person concerned to be appointed as a ‘Visiting Professor’ in an Indian university for at least one year.

Further, when such a person with a one-year foreign LL.M degree obtains a one-year teaching experience as a visiting faculty/internee faculty/clinical faculty; then the Master's degree obtained on one year term may be considered equivalent to an Indian LL.M, which is a two-year degree.

When Sub-rule 1 and Sub-rule 3 are read together, the cause of action for Wednesbury unreasonableness arises. For the benefit of the non-law audience, Wednesbury unreasonableness is a ground for judicial review which can be used to strike down a law if the court finds that the law is so absurd that no reasonable man would have acted in that way.

This is relevant because a law student obtaining an LL.B degree from India, after competing with candidates all around the world for seats and scholarships, who goes on to pursue a BCL or LL.M from highly accredited foreign institutions such as Oxford, Harvard, Stanford, UC Berkeley, Cambridge, LSE, Kings University, all of whom provide only a one-year LL.M degree, will not be recognised as holders of an LL.M.

Whereas a minuscule amount of law students whom either largely by virtue of being born abroad or being able to afford expensive education abroad, go on to pursue their LL.B as well as LL.M from abroad will be benefited under Sub-rule 3.

These provisions prima facie discriminate against the majority of meritorious Indian students including Rhodes Scholars who go on to pursue LL.M abroad.

Practical realities of legal academicians in India

In general, the practice for hiring faculty in India is that the tier 1 National Law Universities (NLUs) and private institutions like Jindal Global Law School (JGLS) prefer hiring those candidates who have completed their LL.M abroad because only a few people who rank at the very top of the class, as well as those who have demonstrated their research, are eligible to pursue their LL.M abroad.

However, according to the two-year LL.M degree rule made by the BCI, those meritorious candidates with an LL.M from Harvard or BCL from Oxford will no longer be eligible to apply for the posts mentioned under Rule 20(3) nor be able to eventually take up full time-teaching as a career.

Further, in light of EP Royappa v. State of Tamil Nadu, neither is there a reasonable classification nor intelligible differentia. The quality of legal professionals in India will in no manner be enhanced if the LL.M degrees of meritorious students who obtain their LL.M from ‘highly accredited foreign university’ are not recognised, unless they also happen to possess an LL.B equivalent degree from abroad. And, the classification between students with a Indian LL.B and students with a LL.B from foreign universities is discriminatory.

In the light of the aforesaid deliberations, it is only prudent that the BCI includes the students with an LL.B degree in India who go on to pursue one-year LL.M from highly accredited foreign universities under the rule of equivalence.

The need to bring one-year LL.M from premier/highly accredited Indian law universities on par with ‘Highly accredited foreign universities’

Upon reading the Rules, an underlying assumption by the BCI can be traced. BCI assumes that all law schools in India are not ‘highly accredited’, or in other terms, not on par with the foreign universities. Although a vast number of traditional law schools may, unfortunately, shed evidence in favour of BCI’s assumptions, will this logic be applicable to the premier law universities in India?

There is an ocean of difference between the courses/teaching-learning procedure/quality of faculty/research facilities between the national law schools and traditional law schools in India. Testifying to this assertion, the Bar Council of India in the case of Master Balachandar Krishnan v. State of Karnataka, (NLSIU Domicile Reservation Case) has made an admission that “there can be no comparison of the Law University with any other institution or other law schools of University.”

It further said,

“The institution (NLSIU) has undertaken many research projects and has exchange programmes with several international universities including the National University of Singapore, Osgoode Hall Law School, New York University, Canada and Bucerius Law School, Germany etc. The faculty members of the respondent/Law University have studied in well- known universities overseas and are engaged in teaching and research under various exchange programmes. A number of professors and Judges from India and overseas have visited and interacted with, and even taught the students in the respondent/Law School.”

The aforesaid description of NLSIU is even applicable for tier 1 law universities such as NALSAR, JGLS, NUJS, GNLU etc who have made their mark in the international arena, be it by winning the world rounds of moot court competitions or publishing in journals of international repute.

Therefore, on the strength of the aforesaid reasons, the quality of education imparted by these premier institutions, ranking, results yielded in terms of eminent legal professionals, and the quality of research conducted in these universities are on par with international standards. Thus, there exists no reason why they must not be classified on par with the ‘Foreign University’ mentioned under Rule 20(3) to encourage and recognise the one-year LLM degree taught by them.

While BCI has taken a positive step towards making the curricula and pedagogy research-oriented rather than simply teaching at an ‘advanced’ level what was studied at a ‘preliminary’ level in LL.B, it should have carved out exceptions for premier institutions to continue with the one-year degree with full compliance with the compulsory subjects and the rule of working as ‘visiting professor’ after LL.M still applying to them.

Need for introducing public consultation in the BCI’s decision making process

With the National Education Policy leaving the legal education out of the Higher Education Commission of India’s umbrella, BCI has assumed the role of the guardian in legal education in India.

Now that the BCI has the mandate of being a rule-making authority, it should take into consideration what Justice PN Bhagwati said:

“Law derives its legitimacy from justice and that people obey the law if it is just and in accordance with the norms and values, they have set out in the supreme document to realise the accountability...to the people of the country”.

And one way by which BCI can make inclusive decisions is through public consultation. This not only makes the BCI accountable to the people in general and eminent legal scholars/academicians and professions in particular; but also does justice by maximising the welfare of the law students which in turn legitimises the changes in legal education.

The author is a final year law student at School of Law, CHRIST (Deemed to be University). Views are personal.

Disclaimer: The views and opinions expressed in this article are those of the author's and do not necessarily reflect the views of Bar & Bench.